Telswitch, Inc. v. Billing Solutions Incorporated et al

Filing 102

ORDER DENYING DEFENDANTS' REQUEST TO VACATE SETTLEMENT CONFERENCE re 101 Notice filed by Billing Solutions Incorporated, Dario J. Saal, Aaron Woolfson, Saal Consulting Inc., Jerry Merkt, Tim Portley, Sean Dunlea, Telswitch, Inc., Merkt-Woolfson. Signed by Judge Edward M. Chen on 2/8/13. (bpf, COURT STAFF) (Filed on 2/8/2013)

1 Eric J. Sinrod (SBN 122868)
Suzanne R. Fogarty (SBN 154319)
2 E.J. Kim (SBN 250062)
DUANE MORRIS LLP
3 One Market, Spear Tower, Suite 2200
San Francisco, CA 94105-1104
4 Telephone: [phone]
Facsimile: 415.957.3001
5 E-Mail: [e-mail]
[e-mail]
[e-mail]
6

Joshua A. Ridless (SBN 195413)
Eugene Y. Kim (SBN 253113)
Ridless Law Office
244 California Street, Suite 300
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415.480.1398
E-Mail: [e-mail]
[e-mail]

7 Attorneys for Defendants and Counter-Claimants,
BILLING SOLUTIONS INCORPORATED, SEAN
8 DUNLEA, TIM PORTLEY, DARIO J. SAAL, and
SAAL CONSULTING INC.
9

Attorneys for Plaintiff and CounterDefendants, TELSWITCH, INC.,
AARON WOOLFSON, JERRY
MERKT, and MERKT-WOOLFSON

10

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
Case No. CV 12 0172 EMC

TELSWITCH, INC.,
Plaintiff,
v.

BILLING SOLUTIONS INCORPORATED, an
16 Illinois corporation, SEAN DUNLEA, an individual,
TIM PORTLEY, an individual, DARIO J. SAAL, an
17 individual, SAAL CONSULTING INC., a Florida
corporation and DOES ONE THROUGH
18 TWENTY, inclusive,

DEFENDANTS’ REQUEST TO
VACATE SETTLEMENT
CONFERENCE & PLAINTIFF’S
NON-OPPOSITION ; ORDER (Denied)

The Honorable Edward M. Chen

Defendants.

19
20

21 BILLING SOLUTIONS INCORPORATED, an
Illinois corporation, SEAN DUNLEA, an individual,
22 and TIM PORTLEY, an individual,
23
24

Counter-claimants,
v.

25 TELSWITCH, INC., MERKT-WOOLFSON,
AARON WOOLFSON, JERRY MERKT and ROES
26 1-50
27

Counter-defendants.

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1
JOINT REQUEST TO VACATE SETTLEMENT CONFERENCE, CV 12 0172 EMC

1

Plaintiff and Counter-Defendant TelSwitch, Inc. (“TelSwitch”) and Counter-Defendants

2 Merkt-Woolfson, Aaron Woolfson and Jerry Merkt (collectively, “Plaintiff/Counter-Defendants) and
3 Defendants Billings Solutions, Inc. (“BSI”), Sean Dunlea, Tim Portley, Dario Saal and Saal
4 Consulting (collectively, “Defendants”), and Counter-Claimants BSI, Sean Dunlea, and Tim Portley
5 (collectively, “Counter-Claimants) and collectively with Plaintiff/Counter-Defendants, the
6 (“Parties”) hereby submit this joint statement.
7 I.

DEFENDANTS AND COUNTER-CLAIMANTS’ STATEMENT

8

Defendants/Counter-Claimants respectfully request that the Court vacate the Settlement

9 Conference currently set for February 22, 2013 before Magistrate Westmore.
10

As the Court will recall, at the January 29, 2013 hearing on Defendants’ Motion for

11 Summary Judgment, the Court suggested that the parties might want to participate in a voluntary
12 settlement conference or other form of ADR before the Court rules on the motion. The Court then
13 gave the parties until February 1, 2013 to report back as to whether they wanted to engage in further
14 ADR and if so, what type.
15

Defendants/Counter-Claimants initially suggested that Magistrate Beeler would be an

16 effective Settlement Conference Judge as she already knows the case, having ruled on Plaintiff’s
17 trade secret disclosure issue. Plaintiff /Counter-Defendants rejected Defendants’ proposal that
18 Magistrate Beeler act as Settlement Conference Judge. As a compromise, after meet and confer,
19 Defendants/Counter-Claimants agreed to participate in a settlement conference before another
20 Magistrate subject to the condition that only counsel would appear in person at the conference and
21 all parties would appear by phone. This agreement is specifically reflected in the parties’ February
22 1, 2013 joint letter to Judge Chen (Doc. 98 ).
23

After the case was assigned to Magistrate Westmore, the parties confirmed the agreed

24 procedure that the parties would appear by phone and counsel would appear in person.
25 Subsequently, Plaintiff’s counsel informed Defendants/Counter-Claimants that he would now insist
26 that his client be present at the settlement conference while Defendants/Counter-Claimants could
27 appear by phone. Defendants/Counter-Claimants explained that this change is not acceptable, but
28 Plaintiff/Counter-Defendants have remained steadfast.
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JOINT REQUEST TO VACATE SETTLEMENT CONFERENCE, CV 12 0172 EMC

1

The reason that the pre-condition that all parties appear by phone is important is that the

2 parties already participated in a full day of JAMS mediation with Judge James Warren (Ret) in
3 November 2012 that was unsuccessful. Defendants/Counter-Claimants incurred a great deal of
4 expense in connection with the preparation for and travel to that mediation from various out of state
5 locations (Illinois, Rhode Island and Florida). While Defendants/Counter-Claimants remain willing
6 to engage in ADR, they do not want have to again incur large travel and legal expense in connection
7 with it. They also want to ensure that both parties are on equal footing and believe that there will be
8 an unfair advantage if Plaintiff is present at the Settlement Conference when they cannot be. Thus,
9 since the necessary pre-condition for further ADR – that the parties participate by phone – has been
10 rejected after-the-fact by Plaintiff/Counter-Defendants, the currently scheduled Settlement
11 Conference should be vacated.
12

Accordingly, Defendants/Counter-Claimants respectfully request that the Court vacate the

13 February 22, 2013 Settlement Conference and rule on Defendants’ pending Motion for Summary
14 Judgment.
15 II.

PLAINTIFF’S AND COUNTER-DEFENDANTS’ STATEMENT

16

At the January 29, 2013 hearing on Defendants’ Motion for Summary Judgment, counsel for

17 Defendants expressed concern about the travel and legal expense that Defendants would incur by
18 engaging in a second ADR attempt. Counsel therefore requested that Defendants be permitted to
19 appear telephonically for further ADR. Plaintiff had no objection to allowing Defendants to appear
20 telephonically. This Court then referred the matter to Judge Westmore for an emergency settlement
21 conference.
22

Counsel never agreed to barring its own clients from appearing personally at the settlement

23 conference. The issue of Plaintiff’s appearance at the settlement conference only arose after the
24 settlement conference was scheduled. Plaintiff had always intended to attend the settlement
25 conference in person, believing face-to-face interaction to be more conducive to settlement
26 discussions and therefore preferable whenever possible. And because Defendants’ only stated reason
27 for requesting permission to appear telephonically was to limit Defendants’ travel and legal
28 expenses, Plaintiff had no reason to believe that its own plans to appear in person (which, of course,
3
JOINT REQUEST TO VACATE SETTLEMENT CONFERENCE, CV 12 0172 EMC

1 would have no impact on Defendants’ travel and legal expenses) would be in any way objectionable.
2 But when Plaintiff noted its intention to appear at the settlement conference in person, Defendants
3 insisted that the “deal” was that all parties would only be permitted to appear telephonically (citing
4 concerns about the parties being on equal footing at the settlement conference).
5

Perhaps this was Defendants’ understanding all along, and there was merely a

6 misunderstanding between the Parties (as noted above, the Parties never explicitly discussed
7 Plaintiff’s appearance at the settlement conference until after the settlement conference was
8 scheduled). But even if so, Defendants’ insistence that Plaintiff be denied the ability to be present at
9 a settlement conference because of a perceived “unfair advantage” in a voluntary ADR proceeding
10 hardly seems indicative of a good-faith desire to discuss settlement.
11

Plaintiff desires further ADR and welcomed the Court’s order that the Parties engage in a

12 settlement conference with Judge Westmore. But Plaintiff recognizes that ADR attempts can only be
13 successful if all parties willingly engage in good faith, and therefore does not oppose Defendants’
14 request to vacate the settlement conference.
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RIDLESS LAW OFFICE

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19 DATED: February 6, 2013

____/s/ Joshua A. Ridless__________________
Attorneys for Plaintiff and Counter-Defendants,
TELSWITCH, INC., MERKT-WOOLFSON, AARON
WOOLFSON and JERRY MERKT

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DUANE MORRIS LLP

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24 DATED: February 6, 2013
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JOINT REQUEST TO VACATE SETTLEMENT CONFERENCE, CV 12 0172 EMC
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_______/s/ Eric J. Sinrod______________
Attorneys for Defendants and Counter-Claimants,
BILLING SOLUTIONS INCORPORATED, SEAN
IT IS SO ORDERED that Defendant's
DUNLEA,
request is denied. Parties to contact JudgeATES DISTRICTTIM PORTLEY, DARIO J. SAAL, and
C
T SAAL CONSULTING INC.,
Westmore to discuss attendance and all
other logistical issues.
D
DENIE
_____________________________
Edward M. Chen, U.S. District Judge
. Chen
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Judge E 4
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